Medical Malpractice
Survival Claim
Wrongful Death Claim
Personal Injury
Noneconomic Damages
Motion to Strike
Motion for Leave to Amend
Writ of Prohibition
Writ of Mandate
California Law
In this case for medical malpractice and wrongful death, plaintiff Joely Ng (Ng) and defendant Los Alamitos Medical Center, Inc. (the Medical Center), dispute whether recent amendments to the cap on noneconomic damages (Civ. Code, § 3333.2) under the Medical Injury Compensation Reform Act of 1975 (MICRA) and to the availability of noneconomic damages in survival actions (Code Civ. Proc., § 377.34) permit Ng to recover noneconomic damages under one or two MICRA caps. In this petition, Ng seeks a writ of prohibition or mandate directing respondent court to vacate its May 24, 2024, order granting the Medical Center’s motion to strike portions of Ng’s complaint that allege her entitlement to seek two MICRA caps. We conclude Ng’s claims are subject to two separate MICRA caps. Accordingly, we grant the petition and direct the court to vacate its order and enter a new and different order denying the motion.
(…) The complaint alleges two causes of action against all defendants: (1) wrongful death, in Ng’s individual capacity; and (2) medical malpractice, in Ng’s capacity as successor in interest to the Decedent (the survival claim). In addition to economic damages, Ng sought noneconomic damages for each claim: (1) for the wrongful death claim, damages for the loss of the Decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support, up to the cap allowed in Civil Code section 3333.2; and (2) for the survival claim, damages for the Decedent’s pre-death pain and suffering, up to the cap allowed in Code of Civil Procedure section 377.34, subdivision (b).
Objecting to Ng’s request for two separate caps for noneconomic damages, the Medical Center filed a motion to strike the following language from the complaint (at paragraph 20 and repeated verbatim in the prayer): “This is separate, apart, and in addition to the general damages sought by Kenneth Ng’s widow in the first cause of action. (See Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 488; Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380.)” Although the Medical Center agrees that Ng is entitled to seek noneconomic damages for both claims, it contends those damages are subject to one MICRA cap. In other words, the Medical Center interprets the relevant statutes as prohibiting Ng from recovering two separate noneconomic damages caps, one for each claim.
Respondent court granted the motion. The court reasoned that because “the wrongful death claim is not separate and distinct from a medical negligence claim, it cannot be . . . subject to a separate MICRA cap.” The court, however, “noted that while the MICRA cap affects the final judgment, it does not have any impact on the jury’s verdict itself or the amount determined to be plaintiff’s actual noneconomic losses.” Although the court denied leave to amend, it did so “without prejudice to plaintiff bringing a motion for leave to amend to assert the two claims as separate and distinct for purposes of the MICRA cap, should plaintiff discover and allege facts that support a finding the wrongful death claim is separate and distinct from the medical negligence claim.”
A trial court may “strike out any irrelevant, false, or improper matter inserted in any pleading” and “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (§ 436, subds. (a), (b).) Generally, we review a ruling on a motion to strike for abuse of discretion. (Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 309.) But where, as here, the ruling concerns “the proper interpretation of a statute, and its application to undisputed facts,” it is a question of law which we review de novo. (Ibid.)
At issue here is whether the recent amendment to Code of Civil Procedure section 377.34, which authorizes a decedent’s personal representative or successor in interest to recover noneconomic damages, means a plaintiff can seek two MICRA cap awards (one for himself or herself and one for the decedent) under Civil Code section 3333.2. We conclude it does. Because a wrongful death claim and a survival claim—even when premised on the same alleged medical malpractice—are separate and distinct claims, a plaintiff suing for both claims can seek to recover two MICRA caps.
Ng’s action, filed in 2023, is subject to the recent amendments to these statutes. As relevant here, effective January 1, 2022, subdivision (b) was added to section 377.34 of the Code of Civil Procedure to allow for the recovery of damages for a decedent’s “pain, suffering, or disfigurement” in survival actions “filed on or after January 1, 2022, and before January 1, 2026.” (Stats. 2021, ch. 448, § 1.) It also provided that “nothing in this section alters Section 3333.2 of the Civil Code.” (Code Civ. Proc., § 377.34, subd. (e).) Effective January 1, 2023, Civil Code section 3333.2 was amended to, among other things, increase the $250,000 cap on noneconomic damages. (Id., § 3333.2, subds. (a)–(c) [$350,000 in medical malpractice cases not involving wrongful death, $500,000 in wrongful death cases, with annual increases]; Stats. 2022, ch. 17, § 3.) These amendments raised the question of whether a survival claim was subject to a separate MICRA cap.
A survival claim (§ 377.30) is “a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. [Citation.] The survival statutes do not create a cause of action. Rather, ‘they merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.’” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264 (Quiroz).) In contrast, a wrongful death claim (§ 377.60) compensates the heirs of the decedent “for the loss of companionship and for other losses suffered as a result of the decedent’s death.” (Quiroz, supra, 140 Cal.App.4th at p. 1263.) Such “damages . . . are in the nature of compensation for personal injury to the heir” and “include (1) the loss of the decedent’s financial support, services, training and advice, and (2) the pecuniary value of the decedent’s society and companionship.” (Id. at p. 1264.) “Unlike some jurisdictions wherein wrongful death actions are derivative,” California’s wrongful death statute “‘creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived.’” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 283.)
Crucially, a wrongful death claim may not include any damages recoverable as part of a survival claim, and the claims may be tried separately. (§ 377.61; Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 861.) For these reasons, we conclude respondent court erred in finding the claims were “not separate and distinct” and subject to one MICRA cap.
DISPOSITION
The petition is granted. Let a peremptory writ of mandate issue, directing the trial court to vacate its May 24, 2024, order granting the Medical Center’s motion to strike and to issue a new and different order denying the motion. Petitioner to recover costs of this proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
(California Court of Appeal, Feb 20, 2025, Ng v. Super. Ct., Docket G064257M, Certified for Publication)